Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. GEORGE FIEDLER, Judge, presiding. Affirmed.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT. CHARGE: Murder. *fn1
JUDGMENT: The jury found the defendant guilty of murder and fixed his punishment at thirty-five years.
(1) It was error for the trial court to deny continuance requested by the Public Defender.
(2) It was error for the court to permit the jury to determine the defendant's punishment when the new Code of Criminal Procedure provides that the judge fix sentence and such Code was in effect at the time of trial.
(3) The evidence was not sufficient to show that the defendant shot the deceased with malice aforethought.
EVIDENCE. Testimony of State Witnesses:
Mrs. Gertrude Jones. She had seen her son, the deceased, at the morgue. On the day of the shooting he arose at 9:30 a.m., and stayed home until 2:00 p.m. He returned home for about 15 minutes around 5:00 p.m. He seemed sober at these times, and she had not seen him drinking that day.
William Robinson and Robert Brent. These witnesses testified to substantially the same facts. Robinson was a customer and Brent was the manager of the Normal Pool Hall, located at 438 East 63rd Street, Chicago. The deceased, Willie Jones, had been playing pool there the afternoon of June 14, 1961, and again that same evening. About 10:30 p.m. the defendant came in, wanted to play pool, laid a pool cue stick on the table at which Jones was playing, and when Jones tried to remove the stick, the defendant held the stick down on the table. Jones told the defendant not to "mess around" and called him a crazy son of a bitch, and added, "Otherwise I will kill you." Brent testified that he had warned the defendant that fighting was not allowed in the pool hall. Defendant backed away from Jones and warned him, "You don't threaten me, you greasy so and so." Defendant then left. Jones continued playing pool with one "Kilroy." About 20 minutes later defendant returned with a gun in his possession. The occupants, numbering about 25, began to "dash about," trying to get out of the way. The defendant went up to Jones, and Brent went toward defendant and said, "House, don't do that in here." House told Brent to go on back, then began hitting Jones on the head with the gun. Jones did not hit the defendant, but tried to keep from being hit, and moved back along the row of pool tables until, at the fifth and final table, when Jones was hit the fourth time, the gun went off once. House then walked out of the door, the gun still in his hand. Jones twisted around, sat down on some cases of soft drink bottles, and collapsed. The police arrived about ten minutes later. Both Brent and Robinson had been about 10 or 20 feet away from the altercation; they both testified that the defendant had been whipping Jones with the barrel of the gun a .45 caliber automatic. There were some minor discrepancies in the testimony of these two eyewitnesses; for example, they differed as to whether all five pool tables were in use at the time defendant initially intimidated Jones; whether defendant ran or walked after the shot went off; whether Jones had finished his game and was playing out the remainder of the time he had paid for, or if he was in the middle of the game. Since the trial occurred more than two years after the shooting it is to be expected that there would be some discrepancies in the testimony. Robinson testified that no liquor was served in the pool hall, that he had not smelled any liquor on Jones' breath, that he and Jones had not been drinking together. Brent testified that he was in the washroom when House returned, but that he immediately went out when he heard a commotion; that Jones was over six feet tall, and weighed 200 pounds. Both witnesses had previously seen Jones and House around the poolroom over a period of time.
Hubert Harnois. Police Officer Harnois was assigned to a squad car in the Englewood District of Chicago. On the night of June 14, 1961, he received a radio dispatch to go to the Normal Pool Hall, and he arrived there about 11:12 p.m. He described the premises for the court: there was a center entrance to a rectangular store, and there were about five pool tables down the center of the store; there was an adjoining room to one side; and soft drink equipment and bottles were in the rear of the store. He found the body of the deceased in the rear of the store, lying face up, with arms and legs outstretched, over a stack of soft drink bottles. Between the second and third pool tables he found one expended cartridge case. The body was located about six or seven feet further away from the last table.
Claude Andersen, a Chicago Police Department detective, arrested the defendant pursuant to warrant in Los Angeles, California, on February 7, 1963. He was accompanied at that time by another detective. They brought the defendant back to Chicago by commercial air transport. During the trip back Andersen and the defendant conversed, and the defendant (according to Andersen's testimony) said the deceased had been shooting pool and losing, and that the deceased's partner had refused to play any longer even though the deceased wanted to "get even." Defendant then walked to the table and put his cue stick there, whereupon the deceased objected to defendant's taking the table. An argument ensued, and the deceased said, "Get off me, or I'll kill you." House said, "How can you kill me? You have no weapon." House had also told Andersen that he then pulled a .45 caliber pistol from his pocket and slapped Jones on the side of the head with it; that the gun went off; that he knew he had shot Jones; that he then left the poolroom, went home, packed, and left the following day for Los Angeles. Andersen identified People's Exhibit One the .45 caliber gun as the one which had been turned over to him by the Los Angeles Police Department on the day he arrested the defendant. Andersen told the court that the defendant had at that time admitted that it was the gun the defendant had used to shoot the deceased. It was brought out on cross-examination that the defendant had turned himself in voluntarily in Los Angeles. Detective Andersen did not know if defendant was involved with any other charge in California.
Dr. Eugene Tapia. As Coroner's Pathologist for Cook County, Illinois, Dr. Tapia, a licensed physician, had on June 15, 1961, examined the body of Willie Jones at the Cook County Morgue. The cause of Jones' death was a bullet wound which went through his chin and through his chest. The deceased's blood showed an alcohol content well below an amount which would have rendered him intoxicated or under the influence of alcohol. Dr. Tapia admitted that he had not performed the blood test himself, but had relied upon the toxicologist's report which had shown there was approximately 105 milligrams per cent of ethyl alcohol in deceased's blood, or 45 milligrams below an amount sufficient to intoxicate a person. He also testified that the amount of alcohol which would evaporate from a deceased person's blood between the time of death and the time of a blood sampling was negligible. When asked if he had, in his examination, noticed any scars or abrasions or marks around the head of the deceased, Dr. Tapia replied that the only thing he saw was the bullet wound of entrance and the bullet wound of exit in the chin.
Testimony of Defense Witnesses:
John House, the defendant, testified that he went to the Normal Pool Hall at about 8:30 p.m. Jones was arguing with one "Kilroy" because Kilroy was quitting playing. They were at the No. 3 table, and Jones was in a "frenzy." House took a pool stick from the rack and placed it on the No. 2 table; Brent took the rack off the balls, and House turned the light on over the table. House commenced playing with one "Shorty," and as he was preparing to make a shot Jones came alongside of House and twisted the stick out of his arm. When House protested Jones asserted that he had paid for the use of that table; House replied that Jones had not paid for the use of the table, that the light had been out and the table had been vacant. House then said, "What's wrong? Are you mad at me because you lost a game of pool?" Jones said, "No, I ain't mad at you. But don't you mess with me, because if you mess with me I'll kill you." This surprised House; he "couldn't understand a man getting mad enough to say that he would kill another person over a pool game." House indicated disbelief to Jones, then saw that Jones had a pool stick which he held in a threatening manner. Jones pushed him back and asked if he was crazy; the spectators laughed at this remark, since House had pulled out a gun. Jones turned to the spectators and said that now House would have to kill him; then Jones charged at House and told him, "You got to kill me," to which House said that he did not have to kill him. As House got ready to leave, Jones came from behind and grappled with him; House had the gun in his hand, and figured that Jones was trying to get the gun from him. When Jones made a charge at House, House "slapped him . . . with the left hand . . . then . . . swung over at him with the pistol." House thought he struck Jones on the head, and the gun "went off after I swung at him." He was not holding the gun as a person normally does; he did not shoot intentionally. After the gun went off, Jones "smiled" at House. "Both of us were real surprised. So he smiles at me. I thought maybe the gun bullet had ricocheted some way. I didn't have no idea it hit him. I turned and walked out." House denied striking the victim more than once, denied initiating the argument, and denied having left the poolroom and returning twenty minutes later with ...